In stark contrast to his fellow witnesses, Goldman testified that FOSTA is a bad idea, mainly because it will carve a hole in Section 230, which he called “one of Congress’ most important policy achievements in the past quarter-century.”

Imagine Goldman’s surprise when the subcommittee issued a summary of the day’s testimony, which included recaps of the testimony given by all four of his fellow witnesses, along with the opening statement made by Rep. Marsha Blackburn, the Tennessee Republican who chairs the subcommittee and is one of the bill’s 171 co-sponsors.

Goldman, a frequent expert witness on matters concerning Section 230, is not mentioned in the release.

Goldman tells Front Page Confidential that he can only “speculate” as to why his testimony failed to make the subcommittee’s highlight reel.

But speculation really isn’t necessary: The professor essentially threw a barrel of ice water on the hearing.

Raising the same issues he brought up in September regarding SESTA, Goldman pointed out that Congress passed Section 230 in 1996 in response to a court ruling that held that if an online service removed objectionable content in one instance, its failure to do so in other instances could be held against it.

Section 230 went a step further, making the creator of the content liable for what was posted, not the intermediary that published it.

It has served as a bedrock rule of the internet, allowing sites such as Facebook, Twitter, and YouTube to flourish.

“Section 230 is a very powerful statute, and amendments to it have the potential to have very dramatic effects.” — Eric Goldman, Santa Clara University School of Law

Goldman views FOSTA as a return to the bad old days when sites had two choices: Either exercise full editorial control over third-party content and hope nothing slips past, or avoid moderation altogether in order to sidestep liability.

“FOSTA would reinstate the moderator’s dilemma,” Goldman told the subcommittee. “For the first time in over two decades, it would cause online services to question whether they should moderate content. Some services will conclude that it’s too risky to do so. If online services reduce or eliminate their moderation efforts, FOSTA may counterproductively cause a net increase in sex-trafficking promotions and all other types of antisocial content.”

Goldman observed that Section 230 does not preclude the federal government from prosecuting websites that are involved in illegal enterprises. He cited Department of Justice prosecutions of two services that published online prostitution ads, MyRedbook and Rentboy.

“[T]hose who thought that slavery was something that could never happen in 2017 America have had to confront the terrifying reality that not only is it happening, it is on the rise,” said Blackburn. “And it is on the rise in large part because the Internet, the technological masterpiece of our time, has made it much, much easier to do.”

In large part, legislators have fashioned both FOSTA, much like its Senate sibling, SESTA, as a cudgel to wield against the online listings giant Backpage. The company has weathered civil and criminal court proceedings aimed at eliminating the adult-oriented classified ads its users pay to post. Even as politicians and prosecutors continue to cast Backpage as an “online brothel,” courts have generally ruled that Section 230’s grant of immunity applies to Backpage, just as it does to any other website.

About Stephen Lemons

Stephen Lemons is an award-winning investigative journalist with more than 20 years of experience covering everything from government corruption to white-supremacist gangs. In addition to Front Page Confidential, his work has appeared in Phoenix New Times, the Los Angeles Times, Salon.com, and the Southern Poverty Law Center’s Intelligence Report magazine.

About Front Page Confidential

Front Page Confidential is published by Michael Lacey and Jim Larkin and edited by Stephen Lemons. We aim to bring our readers important news, commentary, and historical perspectives on all matters related to free speech — from how it affects us all to how it will affect our future rights to speak freely.

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